Wednesday, September 21, 2005

"We Don't Torture." "We Abide By Our Treaty Obligations." "We Treat Detainees Humanely." (Repeat as Needed.)

Marty Lederman

Timothy Flanigan was the Assistant Attorney General for the Office of Legal Counsel (OLC) in the George H.W. Bush Administration. In the George W. Bush Administration, he was Deputy White House Counsel. He left the Government in December 2002, and has now been nominated to be the No. 2 officer at the Department of Justice -- the Deputy Attorney General.

According to Administration attorneys and other officials, Flanigan "discussed a draft" of the notorious OLC torture memo as it was being prepared in the summer of 2002. Accordingly, in connection with his pending nomination, several Senators on the Senate Judiciary Committee submitted written questions to Flanigan regarding the OLC torture memo and related issues.

In his written answers to the questions of Senators Leahy, Kennedy, Feingold and Durbin (see also further written responses to additional questions of Senator Durbin), Flanigan endlessly invokes the mantras of this Administration, to wit:

-- "The President has recently and repeatedly reaffirmed the longstanding policy that the United States will neither commit nor condone torture."

-- "The United States has committed itself to complying with all of its obligations under the Convention [Against Torture]" -- including the requirement in Article 16 that the U.S. "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

-- "The President has said we will not treat people inhumanely."

Read a bit deeper, however, and one finds that these assurances are not quite what they appear to be. For example:

We Don't Torture

-- Flanigan is unwilling to say whether waterboarding -- "intentionally inducing a detainee's perception of suffocation" -- is torture, because that "depends on all of the relevant facts and circumstances." (Moreover, in connection with the Flanigan nomination, Senators Kennedy, Feingold and Durbin asked DOJ to produce the 2002 DOJ memo discussing whether various interrogation techniques constitute torture or are otherwise unlawful. On Monday, DOJ rejected that request. Interestingly, the Department does not assert that the information was classified because it reveals CIA methods. Instead, it merely argues that the memo's disclosure "outside the Executive Branch would harm the deliberative process of the Department and the Executive Branch and disrupt attorney-client relationships.")

-- Although Flanigan concedes that he was present at two meetings where "OLC lawyers" briefed the White House Counsel on their analysis of the federal torture statute, he implausibly claims never to have seen any drafts of the torture memo (including the final draft), even though it was delivered to the White House Counsel on August 1, 2002, several months before Flanigan left office. [UPDATE: In further written responses to additional questions of Senator Durbin, Flanigan refuses to name the OLC lawyers who briefed him and Judge Gonzales.]

-- Flanigan claims that the statutory analysis of the torture statute he received from OLC in the summer of 2002 "appear[ed] to be reasonable" -- even though that analysis was thoroughly and unmercifully repudiated by OLC itself in December 2004, as soon as the slightest bit of public attention was brought to bear on it.

We Abide By Our Article 16 Obligation to Prevent Acts of Cruel, Inhuman or Degrading Treatment In Any Territory under U.S. Jurisdiction

-- Perhaps we ceaselessly abide by the obligation of Article 16 of the Convention Against Torture to prevent acts of cruel, inhuman or degrading treatment in any territory under U.S. jurisdiction; but the Department of Justice has taken the implausible view that that obligation does not apply overseas, and Flanigan writes that that DOJ analysis "appears to me to be correct." (For further discussion of this question, see this post.) [UPDATE: In further written responses to additional questions of Senator Durbin, Flanigan assures the Senator that even though in DOJ's view there's no legal requirement that we avoid cruel, inhuman and degrading treatment of detainees overseas, nevertheless "it is the policy of the Administration to abide by the substantive constitutional standard incorporated by the Senate reservation [prohibiting conduct that "shocks the conscience"] into Article 16," even overseas. Is that right? Well, then, how is the waterboarding and false burial of some detainees consistent with such a "policy"? And why, in that case, is the Vice President fighting tooth and nail to prevent Senators McCain and Graham from enacting a statute that would unequivocally prohibit cruel, inhuman and degrading treatment overseas?]

The President Has Required "Humane" Treatment of Detainees

-- When asked to define the "inhumane treatment" that the President has proscribed, Flanigan carefully explained that the President's February 7, 2002 memorandum directs "the United States Armed Forces" (i.e., not the CIA) to treat detainees humanely. (See this post and those linked therein.)

-- Flanigan also confirms that the President's directive, even as to the Armed Forces, is toothless. He writes that "'[i]nhumane treatment is not susceptible to a succinct definition. It is informed by the customary laws of war and depends on all of the relevant facts and circumstances." Practice has borne this out -- the view of the Department of Defense is that concedely degrading and humiliating treatment can still be "humane." [UPDATE: In further written responses to additional questions of Senator Durbin, Flanigan emphasizes that to say "humane" is not susceptible to a succinct definition "is not to say that the term lacks meaning or that the Department of Defense cannot provide service men and women with appropriate guidance in the context of particular facts and circumstances." Oh, well that's reassuring. Flanigan goes on to write that the White House has not provided guidance specifically on the question of what is "humane," and that he's not able to say whether -- as DoD has concluded -- "degrading and abusive" treatment can be humane.]


Robert K. Vischer (St. John's Law School) has an article titled "Legal Advice as Moral Perspective" available on SSRN that addresses that issue for the OLC attorneys drafting the torture memos, the attorneys for Enron and the attorneys representing the Catholic Church priest sex abuse cases. Is amoral lawyering the appropriate standard?

"War is Hell."

I'm just a dumb intellectual property lawyer, webmaster / web programmer + instructor, blogger, web memoirist, mil-spec poet and screenplay writer ... but I'm also hopeful of starting a doctoral program in Neuroethics here pretty soon, i.e. one might say I've tried my damnedest to establish some sort of real cred.

At 2:00 a.m. on 9/11 I arrived at a place where I thought I'd leisurely work on a law review article regarding things like terrorism, stalking, cyberstalking and computer hacking. Woke up early the next day despite my late arrival because I'm also a news freak. Saw the first plane hit, thought a fellow pilot had screwed up royal or got screwed by an air traffic controller. Then I saw the second plane hit, and thought: Terrorist Masterstroke. Put down my keyboard and stack of research notes and was far too upset to write anything.

About a month before that, I was engaging in some "psywar training countertactics" by way of assorted shenanigans, I was awarded by a field-exercise visit from a guy who's now the chief psychologist at the Pentagon in charge of their Behavioral Sciences Directorate. He studies "psychological precursors of terrorism" (you know, prevent + detect, so the first responder guys can stay in the firehaouse and play cards). He's also tasked with risk-benefit analysis for the Gitmo interrogations, last I heard.

Tell you what. I'm a helluva lot more comfortable with using RBA regarding interrogation tactics than I am trying to apply Professor Sixpack's subjective sense of Ethics, when it comes to fellows who want to chop off my head, demolish our buildings, and fire shoulder-mounted ordnance at some jet plane my kids might be on. Haven't read the SSRN article but I'll hunt around for it and comment later if appropriate.

When the Abhu Ghraib revelations first surfaced I was inclined to believe that a minority of boneheads were behind it and I also felt a lot of the "torture" allegations were being hyped. However the recent revelations that have surfaced suggest a deeper and more prevasive problem.

It now appears that torture was used as a tool to humiliate others in a random and completely gratuitous fashion - for reasons of power and control basically. This is quite different from applying pressure to a suspect who has knowledge that within an hour a bomb will detonate in a mall killing and wounding hundreds. In such a case I would say do whatever it takes to extract information about the whereabouts of the device.

To suggest that American methods can't be compared to the very real torture of regimes such as Iran isn't the point. Given the apparent extent of this problem we can't off-load responsibility by simply saying "its worse over there".

Recently Hitchens in fact used the term "moral Chernobyl".

When the Bush administration presumes to be an exporter of "freedom and democracy" to other countries it better make damn certain that its representitives are above this type of mass descent into moral idiocy.

I'm still wading through the Vischer article, but I may have to shelve it temporarily in favor of reading e.g. the new Balkinization posts on torture vs. abuse.

I can see that right off the bat, Vischer "loads the language" by conflating the two words "torture" and "abuse" and basically treats them as synonymous. Later in the piece he does discuss the two, but seems to focus on the fact that the lawyers in charge cannot adequately distinguish the two semantically, at least to his satisfaction. This is just carping, and to me suggests the utility of using risk benefit analysis. I'll finish reading the piece, but first I'm going to read the new Balkinization posts. If all Vischer offers is say that we're dealing with a fuzzy set here, i.e. some abuse = torture, he doesn't really add much to the mix nor does he help us gain useful information from detainees. So far he looks to be YAAC (Yet Another Armchair Critic), and while I can agree with his general proposition that we lawyers all too often ignore The Moral while zealously prosecuting the interests of our clients, so far he hasn't convinced me that the micro-case of Gitmo Abuse fits that mold. I'll probably comment more extensively on the newer posts rather than back here.


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